19731214 TZHC Dodoma

h2' /)'7. IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION (DODOMA REGISTRY) CRIMINAL SESSIONS CASE NO0 98 OF 1973 THE REPUBLIC VERSUS JAILOS S/O MAJIYASODA Charge: Murder c/s 196 of the Penal Code Cap.'16. p. J U D G M E N T •'. MNAKASENDOJO The accused inthis case JAILOSMAJIYASODA, sthds charged on info'rmation for the murder of MASUDf KIBERITI on 30th day of December, 1971 The case for the prosecutioxi 'is briefly thlSe A few days before the fatal assault of t}1ie deceased Saada bint Saidi who is the wife of .the deceased and was at that time living apart from her husband, went to Mafyeko vilLage Chunya to visit her husband and her daughter one Mwajnbu bint Masudi0 Thde days later i0e0 on the 30th day of Novenibe'r, 1971, Saada and her daughterMwajabu went to drink pombe at the pombe club run by one Juakali.They were at the pombe club until sometime after 5 o'clock in the 4 evening when they left for the house of Polepole., anelder in Mafyeko village0 At Polepole's house Saada made an order of one bakuli of pombe and when this was delivered to her she, her daugher and Shabani left Polepoles house going in the direction of the house of the deceaed. As has been * stated by the two material witnesses for the prosecution., Saada and Mwajabu, the footpath from Polepole's house to that of the deceased passed through an uninhabited area variously described by the witnesses as "pori or porini". Accused confirmed this to be so0 Somewhere along this lonely route Saada decided to rest a bit before continuing with her journey horne. She accordingly stopped by a log of .a 'tree on which she sat and began drinking her pombe. Shabani soon joined her on the log, while Mwajabu femained standing0 The two had nat long stopped at this particular spot on the route when the accused suddenly and quite unexpectedly appeared on the scene 0 Theirt thing he did on reaching the group was to snatch away the bakuli of pombe from the hands of Saada and on the latter protesting. accused shut her up by 'saying,"Kwa nini sisi tunakutongozaunakàtaa 2" It was at this stage that the deceased came on the scene. He was coming from the direction of the pombe club and would appear to have been quite near the spot where the triowas when acdused spoke to Saada as clearly his first words addressed to the accused would tend to sugest. His words were "Kwa nini unamwambia mice wangu maneno hayo 2" to which accused retorted "Wewe mzee umezoea, kheri upigwe unamfuatafuata huyu mke wako kwani bado mice wako 2" Accused then picked up •a piece of wood at randum, stoo d up and began beating up the deceased on the head0 •Saada and Mwajabu are not agreed how many times accused beat the deceased this way but it seems clear on the evidence that whatever the raumber of these beatings were, they were fvithout doubt o sufficiently considerable force as to fell the deceased unconscious, from which condition he never recovered0 Wherithe deceased was.lying down unconscious accused erdered the two women tógo home and say nothing to anybody about what had happened0 Accused emphasi'zd.his threat by aying that if they ignored his warning they wpild be doing it at the risk of their own lives. Then the two women' apparently still under the sway of accused threats were escorted them back to the deceased's houses Shabani 1e:t them and went to his own house but not before he had warned them of the danger of leaving their home during the night0 Early the following morning, just as the two women were preparing to leave for JuaaljS house to report about the previous night's incident, Shabani arrived and the three of them then left for the scene of crime. They found the deceased still alive but his condition had deteriorated from what it was the night before. He was groaning and appeared to be in great pain0 From the scene Saad, her daughter and Shabanii went to report the matter to the ten cell leader as a result of which deceased was taken to }Cambikatoto Dispensary. Two days later he was taken from Karnbikatoto Dispensary to Hospital. The deceased never regained consciousness and died in that condition on 7th December, 1971. The autopsy the deceased's diosed facts which leave no doubt at all as to what caused deceased's death. It was, at it appears from the report, the beating allegedly administered to the head by the accused which fractured the skull and caused a contusio cerebri. According to the postmortem findings of the doctor, death was due to thisinjury to the head. It may be noted here that these postmortem findings are without dispute consistent with and corroborate the testimony of Saada and Mwajabu given before this Court. Both Saada and Mwajabu impressed me quite favourably as witnesses of truth on whose evidence I could personally be in1ined to rely and act0 In all the circumstances of the case I can see no reasonable.ground why these simple semi-literate rural peasant women should fabricate evidence concerning matters of such serious import implicating the accused person, I am, in any case, satisfied that what they told the court is true and accordin ly I have not the slightest hasitation in rejecting accusedts story about this matter and I find, as all the Assessors have done, that the accused Jailos Majiyasoda caused the unlawful killing of the deceased Masudi Kibiriti as alleged by the prosecution on the information. Having reabhed this conclusion, I thi;k there can be no doubt on the evidence as to the aGcused's intention on the matter, He clearly did not intend to kill his victim or to say the least, cause him grievous bodly harm. Suffice for elucidation of this finding to quote what I said in directing the assessors on thd.sr question. I said:- "ON this question of intention I would direct you in the evidence that if you come to the conclusion that the accused assaulted the deceased as alleged by the prosecution and accordingly caused his death, to find that when he did so, he did not intend to kill him or cause him grievous bodily harm. Nwajabu, you will remember stated that accused told the deceased "Na wewe mzee umezoea, kheri upigwe unamfuatafuata huyu mice wako kwani bado mke wako 2" Accepting these words to represent accused.ts.intention, it cannot be said that his intention was either to-kill the deceased or cause him grievous bodily injury an intention necessarily to consititute the offence of murder. Furthermore, that his intention was other than to kill his victim or cause him grievous bodily injury is to be seen from the fact that he appeared on the scene unarmed and merely picked up at randum the piece of stick with which he used in beating up the deceased. If his intention was to kill the deceased or cause him grievous bodily injury, why one would expect him to come on the scene armed with some kind of lethal weapon ready to do battle with the deceased." That was my direction to the assessors and f allowing this direction, the 2nd and 3rd assessors quite correctly found the accused only guilty of manslaughter, The 1st Assessor, who would appear, in all probability, to have been so confused to comprehend the points at issue in this case, ignored my direction and wrongly found, in my opinion, that the accused was guilty of murder I think I have sufficientlt made myself , clear on this matter and it would be vilesome in the extreme to have to restate my reasons for concurring fully with the finding arrived at by the 2nd and 3rd ass ~ ssors, i.e. that the accused in this case is not guilty of murder but guilty of manslaughter. For the reaons abundantly plain in the course of this cline f judgment, I/accept and follow the opinion given by the 1st assessor , to and Iacordingly find as the other two assessors have done that the accused is not guilty of murder but guilty of manslaughter contrary to section 195 of the Penal Co and I convict him accordingly. 0 ..... • • . 73 MWAKASENDO' JUDGE 14/12/73 Mr0 Dhebar: ' M' it pease your lordship the accused is married with two wives and five children.' My lord he is aged about 30 years of age 0 His an old mother to maintain He has been in custody for the last 25 months0 My lord that may be considered when the court is passing sentence. Mr0 Chambakare: My lord the accused has a previous conviction he he was convicted on 11th September 1961 of assault causing harm he was fined shs0 300/= or 4 months in default 0 Accused: What the State Attorney says is trUes I was, convicted of assault causing harm in 1961 and fined sh 36b/= ot 4 months imprison- ment in default0 entence. In passing sentence in this case s the court has to have regard to the fact that the accused has been in custody awaiting the ,tr jal of his case for the last two years and also the fact that from his record the accused is a person of a violent nature0 But when what de- fence counsel has paid in accused's behalf is considered I do not think there can be any slight doubt that this is a case where this court should not be unduly swayed by the impassioned appeal by counsel0 On the evidence this was a completely unprovoked brutal assault assault on an innocent and .inat,ed old man and the court would be failing in its duty if it were not tomiémpose on this accused person a sufficiently severe sentence to bring to him and people minded to act as he did in this caseS, that the courts cannot and shall not condone this sort of useless and purposeless violence which as in this occasion often than not leads into loss of human life0 Accordingly the sentence of the court is that you Jailos Majiyasoda shall go to jail for a period of four (4) years0 It is so ordered. J.M.M. MWAKASENDO JUDGE 14/12/73 Assessors thanked and discharged. J.M.M. MWAKASENDO JUDGE 14/12/7 3 Certified true 'copy of the Original DISTRICT REGISTRAR